10000018803

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE

In re: Chapter 11
PERKINS & MARIE CALLENDER'S INC., Case No. 11-11795 (KG)
et al.,
1
Debtors. (Jointly Administered)
Objection Deadline: December 14,2011 at 4:00 p.m. (ET)
________________ ------' Hearing Date: January 19,2012 at 9:30 a.m. (ET)
NOTICE OF OBJECTION
The Official Committee of Unsecured Creditors (the "Committee"), by and through their
undersigned counsel, filed the Objection of the Official Committee of Unsecured Creditors to
Proof of Claim No. 1754 Filed by Omega Trust (the "Objection").
Responses, if any, to the relief requested in the Objection must be filed with the United
States Bankruptcy Court, 824 North Market Street, 3
rd
Floor, Wilmington, Delaware 19801, on
or before December 14,2011 at 4:00 p.m. (ET).
At the same time, you must also serve a copy of the response upon the undersigned
counsel so as to be received no later than 4:00 p.m. (ET) on December 14, 2011.
A HEARING ON THE OBJECTION WILL BE HELD BEFORE THE HONORABLE
KEVIN GROSS, CHIEF JUDGE, UNITED STATES BANKRUPTCY COURT FOR THE
DISTRICT OF DELAWARE, 824 NORTH MARKET STREET, 6
TH
FLOOR, WILMINGTON,
DELAWARE 19801 ON JANUARY 19, 2012 AT 9:30 A.M. (ET).
1 The Debtors, together with the last four digits of each Debtor's federal tax identification number are: Perkins &
Marie Callender's Inc. (4388); Perkins & Marie Callender's Holding Inc. (3999); Perkins & Marie Callender's
Realty LLC (N/A); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC
(7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc.
(4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the
Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119.
{894.001-WOOI8064.}
IF YOU FAIL TO RESPOND IN ACCORDANCE WITH THIS NOTICE, THE COURT
MAY GRANT THE RELIEF REQUESTED IN THE OBJECTION WITHOUT FURTHER
NOTICE OR HEARING.
Dated: November 30, 2011
Wilmington, Delaware
{894.001-WOOI8064.}
LANDIS RATH & COBB LLP
William E. Chipman, Jr. (No. 3818)
Mark D. Olivere (No. 4291)
919 Market Street, Suite 1800
Wilmington, Delaware 19801
Telephone: (302) 467-4400
Facsimile: (302) 467-4450
-AND-
ROPES & GRAY LLP
Benjamin L. Schneider
Mark R. Somerstein
1211 Avenue of the Americas
New York, New York 10036-8704
Telephone: (212) 596-9000
Facsimile: (212) 596-9090
Andrew G. Devore
Prudential Tower
800 Boylston Street
Boston, Massachusetts 02199-3600
Telephone: (617) 951-7618
Facsimile: (617) 235-9715
Counsel for the Official Committee of
Unsecured Creditors
2
In re: Chapter 11
et al./
Debtors. (J ointly Administered)
Objection Deadline: December 14,2011 at 4:00 p.m. (ET)
Hearing Date: January 19, 2012 at 9:30 a.m. (ET)
OBJECTION OF THE OFFICIAL COMMITTEE OF UNSECURED
CREDITORS TO PROOF OF CLAIM NO. 1754 FILED BY OMEGA TRUST
The Official Committee of Unsecured Creditors (the "Committee") of Perkins & Marie
Callender's Inc. ("PMCI") and its affiliated debtors (collectively, and together with PMCI, the
"Debtors"), by and through its undersigned counsel, submits this objection (the "Objection") to
proof of claim no. 1754 (the "Omega Trust Claim,,)2 filed by Omega Trust (as defined in the
Omega Trust Claim) pursuant to section 502(a) of title 11 of the United States Code, 11 U.S.C.
101 et seq., (as amended, the "Bankruptcy Code") and Rule 3007 of the Federal Rules of
Bankruptcy Procedure (the "Bankruptcy Rules"). In support thereof, the Committee respectfully
represents as follows:
PRELIMINARY STATEMENT
1. Pursuant to a settlement approved by this Court at plan confirmation, the Omega
Trust Claim is to be allowed in an amount not less than $12 million and not more than $26
million. All rights to object to the Omega Trust Claim are otherwise preserved other than an
(4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the
2 A copy of the Omega Trust Claim is attached hereto as Exhibit A.
{S94.001-WOOlS074.}
objection seeking to recharacterize the claim as equity. The Committee files this objection to
determine that the Omega Trust Claim be allowed in the amount of not more than $12 million.
2. The Omega Trust Claim is based on the unsupported assertion that Omega Trust's
predecessors were granted in 1969 exclusive territorial rights to develop Perkins restaurants in
the states of Iowa and Wisconsin. In 1977, Omega Trust purportedly sold these undocumented
rights back to the Debtors' predecessor in exchange for 2% of gross sales of all restaurants in the
territory. In the absence of any evidence of the initial transfer of territorial exclusivity rights to
Omega Trust in 1969, the 1977 agreement by which the "rights" were sold back to the Debtors is
void and unenforceable for lack of consideration.
3. Even if the Omega Trust Claim was deemed valid, it is nevertheless grossly
inflated. In the calculations set forth in its proof of claim, Omega Trust asserts that the thirty-
year treasury rate, a risk-free rate of return, is the proper discount rate to determine the present
value of the future stream of payments. Omega Trust's subsequently retained valuation expert
uses a different methodology that is equally flawed. Omega Trust's expert values the claim at
approximately _ by performing a valuation as of the effective date of the Debtors' plan
of reorganization, instead of as of the petition date as required by section 502 of the Bankruptcy
Code. In effect, Omega Trust seeks to improperly include the benefits of the Debtors' post-
petition restructuring in valuing its prepetition claim. The proper calculation of the value of the
Omega Trust Claim as of the petition date results in a value of no greater than $12 million.
RELIEF REQUESTED
4. As set forth more fully below, in accordance with the Settlement (as defined
below), the Committee objects to the allowance of the Omega Trust Claim in any amount greater
than $12,000,000.00.
{S94.001-WOOlS074.}
2
JURISDICTION AND VENUE
5. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157
and 1334. This is a core proceeding pursuant to 28 U.S.c. 157(b). Venue is proper before this
Court pursuant to 28 U.S.C. 1408 and 1409.
PROCEDURAL BACKGROUND
6. On June 13, 2011 (the "Petition Date"), each of the Debtors filed a voluntary
petition for relief under chapter 11 of the Bankruptcy Code. Pursuant to Bankruptcy Code
sections 1107 and 1108, the Debtors continue in the management and operation of their
businesses and properties as debtors in possession. The Debtors' chapter 11 cases have been
consolidated for procedural purposes only and are being jointly administered pursuant to
Bankruptcy Rule 1015(b). No trustee or examiner has been appointed in these cases.
7. On June 24, 2011,3 the Office of the United States Trustee appointed the
Committee and designated the following seven members to serve on the Committee: (i) The
Coca-Cola Company, (ii) Wilmington Trust Company, (iii) Standard General Master Fund LP,4
(iv) News America Marketing, (v) Luna Family Trust, (vi) Northgate Station, LP and (vii) Mr.
Benjamin Monroy.
8. On or about August 16, 2011, Omega Trust filed the Omega Trust Claim against
PMCI in the amount of $55,053,953.27 based on an agreement entered into in 1977 whereby
PMCI (as successor to Perkins 'Cake and Steak, Inc.) purportedly agreed to pay Omega Trust
3 The Office of the United States Trustee revised the notice of the appointment of the Committee on June 28, 2011
[D.l. 127].
4 On September 16, 2011, Standard General Master Fund LP resigned from the Committee.
{S94.001-WOOlS074.}
3
two percent (2%) of gross sales, in perpetuity, of all franchised restaurants in the states of
Wisconsin and Iowa.
5
9. By an order dated September 28, 2011 [D.l. 1057] (the "Standing Order"), this
Court authorized the Committee to, inter alia, prosecute claims against Omega Trust relating to
the Omega Trust Claim, including without limitation causes of action arising under chapter 5 of
the Bankruptcy Code. The Standing Order also authorized the Committee to object to the
Omega Trust Claim solely for voting purposes on the Plan (as defined below).
10. On October 3, 2011, the Committee filed a motion (the "3018 Motion") pursuant
to Bankruptcy Rule 3018(a) to, inter alia, disallow the Omega Trust Claim in its entirety solely
for purposes of voting on the Plan. The Committee asserted in the 3018 Motion that the Omega
Trust Claim was not a claim, but an equity interest, and also asserted that the amount set forth in
the Omega Trust Claim was artificially inflated because Omega Trust used an artificially low
discount rate in calculating the value of its claim.
11. Prior to the hearing on the 3018 Motion and after significant arm's-length
negotiations, the Debtors, the Committee, the Restructuring Support Parties (as defined in the
Plan (as defined below)), and Omega Trust (collectively, the "Settlement Parties") agreed on the
terms of a settlement to resolve certain disputes regarding the Omega Trust Claim (the
"Settlement"). Specifically, the Committee withdrew the 3018 Motion as to Omega Trust and
Omega Trust agreed that the Omega Trust Claim would be allowed in the amount of $1 solely
for voting purposes. Pursuant to the Settlement, no claims for recharacterization of the Omega
Trust Claim as an equity interest or any avoidance actions would be asserted against Omega
5 The Omega Trust Claim asserts that portions of its claim are (i) a secured claim in the amount of $4,446,229.00
based on purported setoff rights, and (ii) a post-petition administrative claim in the amount of $666,664.00 based on
projected post-petition payments due under the agreement. Pursuant to the Settlement, Omega Trust has agreed that
the entirety of the Omega Trust Claim shall be classified as a Class 5 General Unsecured Claim. Accordingly, this
Objection does not address the invalidity of the asserted setoff rights or administrative claim.
{S94.001-WOOlS074.}
4
Trust. Most pertinent to this Objection, the Settlement provided that the Omega Trust Claim
would be classified as a General Unsecured Claim in Class 5 (as such terms are defined in the
Plan) in an allowed amount of not less than $12 million and not more than $26 million.
6
12. By an order dated November 1, 2011 [D.l. 1287] (the "Confirmation Order"), the
Court confirmed the Debtors' Second Amended Joint Plan of Reorganization under Chapter 11
of the Bankruptcy Code (the "Plan"). The Confirmation Order also approved the terms of the
Settlement pursuant to Bankruptcy Rule 9019.
13. By this Objection, and in accordance with the Settlement, the Committee seeks to
have the amount of the Omega Trust Claim determined to be allowed in the amount of $12
million.
OBJECTION TO CLAIM
14. As set forth in more detail below, the agreement upon which the Omega Trust
Claim is based is void and unenforceable. Accordingly, the Omega Trust Claim should be
entirely disallowed. Notwithstanding the foregoing, as part of the Settlement, which was the
result of arm's length negotiations between the Settlement Parties, the Settlement Parties agreed
that the Omega Trust Claim would be allowed in an amount not less than $12 million.
Alternatively, even if the Court were to find that the Omega Trust Claim is valid, its value does
not exceed $12 million when properly valued under standard valuation methods in accordance
with the Bankruptcy Code.
6 The Settlement also provided for other concessions from Omega Trust. Specifically, Omega Trust agreed to not
pursue any claims against the Debtors regarding territorial exclusivity in the states of Iowa and Wisconsin and
agreed to withdraw its objection to confmnation of the Plan.
{S94.001-WOOIS074.}
5
1. OMEGA TRUST HAS PRODUCED NO EVIDENCE THAT IT EVER HAD ANY
RIGHTS TO TERRITORIAL EXCLUSIVITY.
15. Omega Trust asserts that it is "the present holder[] of a grant from a predecessor
of the debtor Perkins & Marie Callender's Inc. of territorial exclusivity for Perkins restaurants in
Iowa and Wisconsin." See Omega Trust Claim ~ 1. To date, however, Omega Trust has not
submitted with the Omega Trust Claim, nor produced in discovery, any document by which any
rights to territorial exclusivity were conveyed to Omega Trust or its predecessors. Instead, the
only document regarding any purported grant of territorial exclusivity that Omega Trust has
produced to the Committee is a letter dated September 26, 1969 (the "1969 Letter"), by which
the then-president of Perkins Pancake Houses, Inc. (a predecessor to PMCI) proposed certain
terms to Mr. Wyman Nelson to develop Perkins restaurants. A copy of the 1969 Letter is
attached hereto as Exhibit B. The 1969 Letter expressly states:
Despite various requests in discovery and questioning in deposition testimony, Omega Trust has
not provided any documentation or testimony to support its assertions that Omega Trust was ever
granted territorial exclusivity for Perkins restaurants in Wisconsin and Iowa.
16. Not only does Omega Trust lack any evidentiary support for its assertions that it
was granted territorial exclusivity, but Omega Trust also falsely asserts in its proof of claim and
various documents filed with this Court
7
that Omega Trust licensed these undocumented rights
back to the Debtors. These intentionally misleading assertions are belied by the very documents
filed in support of the Omega Trust Claim.
7 In its objection to the Plan, which has since been withdrawn, and its opposition to the 3018 Motion, Omega Trust
asserted that it licensed Omega Trust's "rights" under a "Franchise Development Agreement" dated September 26,
1969 (the date of the 1969 Letter) to Perkins in exchange for certain payments. See D.l. 1140 at 4; D.l. 1167 at 3.
{894.001-WOOI8074. }
6
17. The entirety of the amount claimed by Omega Trust is based on an agreement
dated February 1, 1977 (as amended, the "1977 Agreement"). Copies of the 1977 Agreement
and the amendments thereto are attached to the Omega Trust Claim. See Exhibit A. According
to the 1977 Agreement, Omega Trust did not license to the Debtors any territorial rights, but
instead sold and assigned to the Debtors any rights it may have had to territorial exclusivity. The
1977 Agreement provides that any rights under a purported "Franchise Development
Agreement" dated September 26, 1969, were transferred to Perkins 'Cake and Steak, Inc. (the
predecessor to PMCI):8
Omega Trust does hereby assign, sell and set over to Perkins all of
its respective right, title and interest in and to the Franchise
Development Agreement, and further, Omega Trust does hereby
assign, sell and set over unto Perkins all of its respective interest in
any Franchised Restaurants within the Territory.
See 1977 Agreement at 2. Accordingly, the assertion that Omega Trust somehow "licensed" to
the Debtors the undocumented territorial exclusivity rights is demonstrably false. To the extent,
if any, that territorial exclusivity rights were granted to Omega Trust's predecessors, Omega
Trust sold and assigned such rights back to the Debtors.
II. OMEGA TRUST HAS NO VALID CLAIM BECAUSE THE 1977 AGREEMENT IS
VOID FOR LACK OF CONSIDERATION.
18. Omega Trust asserts that it is entitled to a claim against the Debtors in excess of
$55 million (or _ according to its recently retained valuation expert) based on the 1977
Agreement. By the 1977 Agreement, the Debtors' predecessor purported to agree to pay Omega
Trust 2% of gross sales of Perkins restaurants located in Iowa and Wisconsin in exchange for the
8 As noted above, no "Franchise Development Agreement" has been produced, and the purported "Franchise
a",,,,v<uu 1);; to the 1977 the same date as the 1969 Letter.
{894.001-WOOI8074.}
7
transfer of rights under the "Franchise Development Agreement" from Omega Trust to the
Debtors. As set forth above, there is no documentation or other evidence that any territorial
exclusivity rights were ever transferred to Omega Trust or its predecessors. According to the
terms of the 1977 Agreement, the only consideration that Omega Trust provided to the Debtors
in exchange for the payment obligation was the "sale" of the territorial exclusivity rights. Self-
evidently, there was no consideration provided by Omega Trust in the sale of rights it never
owned.
19. It is fundamental that the 1977 Agreement, like any other contract, is only
enforceable if supported by consideration.
9
As the Minnesota Court of Appeals has summarized:
Determining whether sufficient consideration exists for an
agreement is a question of law .... Minnesota follows the long-
standing contract principle that a court will not examine the
adequacy of consideration as long as something of value has
passed between the parties. It is, however, necessary to distinguish
the adequacy of consideration from the existence of consideration.
The issue of whether consideration truly exists is not one of mere
formalism; something of value must be given in return for
performance or promise of performance.
Brooksbank v. Anderson, 568 N.W. 2d 789, 794 (Minn. Ct. App. 1998) (citations omitted). In
the absence of any evidence that Omega Trust ever owned any territorial exclusivity rights, the
1977 Agreement is void for lack of consideration. But for the Settlement, the Omega Trust
Claim should be disallowed in its entirety. Accordingly, in light of the compromises set forth in
the Settlement, the Omega Trust Claim should be allowed in the amount of $12 million.
III. THE OMEGA TRUST CLAIM IS VASTLY OVERSTATED.
20. Even if the Omega Trust Claim was determined to be a valid claim, it is grossly
overstated. The Omega Trust Claim is calculated using the average payment under the 1977
9 By its terms, the 1977 Agreement is governed by the laws of the state of Minnesota. See 1977 Agreement at 6.
{S94.001-WOOlS074.}
8
Agreement for the previous five years divided by the then-current thirty-year treasury rate of
3.7%, yielding a purported present value of $54,106,850.27 for the expected future cash flows.
Use of the thirty-year treasury rate is clearly inappropriate. As discussed in more detail below,
the risk in obtaining payments on an unsecured obligation (assuming there is an obligation) in
perpetuity from a financially distressed restaurant chain is clearly of a different magnitude of risk
than the risk of investing in debt obligations backed by the full faith and credit of the United
States of America.
21. In connection with preparation for the 3018 Motion, the Committee and Omega
Trust each engaged valuation experts to opine on the value of the Omega Trust Claim. Omega
Trust engaged James Peko of Grant Thornton, who produced a valuation report (the "Peko
Report,,)IO that did not follow the method of valuation contained in Omega Trust's proof of
claim. Using an equally flawed methodology, the Peko Report valued the Omega Trust Claim at
(the "Peko Valuation").
A. The Omega Trust Claim Must Be Valued As Of The Petition Date.
22. The first fundamental conceptual flaw of the valuation set forth in the Peko
Report, rendering it irrelevant, is that Mr. Peko used the wrong valuation date. General
unsecured claims are to be allowed, and valued, as of the Petition Date. Mr. Peko instead valued
the Omega Trust Claim as of the Effective Date of the Plan, as if the Debtors were proposing to
pay the Omega Trust Claim in full by payment of a perpetual stream of payments post-
reorganization.
Indeed, Mr. Peko testified at his deposition that the prepetition
financial condition ofthe Debtors was wholly irrelevant to his analysis:
10 A copy of the Peko Report is attached hereto as Exhibit C.
{894.001-WOOI8074.}
9
See Exhibit D at 26:21-27:23; 37:6-38:4.
23. As demonstrated by Mr. Peko's testimony, the Peko Valuation detennined the
value of property to be delivered under the Plan under section 1129 of the Bankruptcy Code.
This valuation is improper, however, since the Debtors will not continue to make payments
under the 1977 Agreement. Indeed, the Debtors protectively rejected the 1977 Agreement and
all related agreements. See Plan Supplement [D.l. 1204], Exhibit 10.
{S94.001-WOOIS074.}
10
24. In contrast to the metrics used in the Peko Valuation, the proper valuation date is
as of the Petition Date. Section 502(b) of the Bankruptcy Code provides that a general
unsecured claim is determined "as of the date of the filing of the petition." 11 U.S.C. 502(b).
Similarly, even if the 1977 Agreement were deemed to be an executory contract (which it is
not),II damages for rej ection of an executory contract are determined "as if such claim had arisen
before the date of the filing of the petition." 11 U.S.C. 502(g). Accordingly, the Bankruptcy
Code requires that the valuation of the Omega Trust Claim be determined as of the Petition Date.
See, e.g., In re Loewen Group International, Inc., 274 B.R. 427, 434 (Bankr. D. Del. 2002)
("Section 502(b) expressly provides that, upon objection to a claim, a Court must 'determine the
amount of such claim ... as of the filing of the petition.' Where, as here, a disputed claim has
been asserted in respect of future payments due post-petition, this language clearly requires that
the claim be discounted to present value as of the petition date.").
25. It is a fundamental aspect of bankruptcy law that unsecured claims be determined
as of the petition date. For example, in calculating the rejection damages under a swap
agreement, post-petition market fluctuations of the reference commodities are not included in
calculating the amount of the claim as of the petition date. In re Enron Corp., 2005 Bankr.
LEXIS 3468 at * 14 (Bankr. S.D.N.Y. Oct. 5, 2005) ("[D]etermining the amount of damages as
of the petition date is consistent with the historical fiction that a debtor's affairs are to be wound
up as if settled on the date of the petition with all of the debtor's assets ratably distributed on that
date. Further, determining the damage claim as of the petition date is perceived as providing
both the fairest treatment to similarly situated creditors and the most administratively efficient
method to calculate the various claims."); see also Addison v. Langston (In re Brints Cotton
11 By the terms of the 1977 Agreement, Omega Trust has no remaining obligations to the Debtors. Instead, the only
purported remaining obligations under the agreement are the payments to be made by the Debtors.
{S94.00I-WOOIS074.}
11
Marketing, Inc.), 737 F.2d 1338, (5th Cir. 1984) (holding that claims based on "on-call"
commodities contracts are calculated based on the market value of the commodity as of the
petition date). Similarly, damages under a rejected warrant agreement are calculated based on
the difference between the exercise price and the price of the subject security as of the petition
date. Bank of Montreal v. American HomePatient, Inc. (In re American HomePatient, Inc.), 414
F.3d 614, 16-17 (6th Cir. 2005) (holding sections 365(g)(1) and 502(g) require the valuation of
damages to be performed as ofthe petition date).
26. The Peko Valuation is improperly based on the post-effective date capital
structure of the Debtors in calculating the appropriate discount rate for the Omega Trust Claim.
Unlike any other creditor in these cases, Omega Trust impermissibly seeks to reap the benefits of
the Debtors' post-emergence capital structure in determining the amount of its prepetition claim.
The Bankruptcy Code prohibits this result by requiring that the Omega Trust Claim be valued as
of the Petition Date.
B. The Peko Report Uses A Fundamentally Flawed Discount Rate.
27. Peko's flawed approach to valuation permeates his analysis. He started the
valuation by using
By comparison, in
September of 2005, the Debtors had issued $190 million of unsecured notes, which already in
his projected terminal value.
{S94.001-WOOIS074.}
12
2005 paid interest at 10%. By September 2008, when the debtors issued their $132 million of
Senior Secured Notes, the interest rate the debtors paid was 14%.
_. By 2010, the trustees of the Omega Trust opined that the actual value of the Omega
Trust Claim was then
28. The Committee will show at trial that the appropriate discount rate as of the
Petition Date was
and that the appropriate value of the Omega Trust Claim as of the Petition Date was
approximately $12 million.
RESERVATION OF RIGHTS
29. The Committee reserves all rights to supplement or present further argument at
any hearing on this Objection, including without limitation any additional evidence ascertained
in further discovery.
NO PRIOR REQUEST
30. No prior request for the relief sought herein has been made to this or any other
court.
NOTICE
31. Notice of this Objection has been delivered to (i) the U.S. Trustee; (ii) counsel to
the Debtors; (iii) counsel to Omega Trust; (iv) counsel to Wells Fargo Capital Finance, LLC, the
administrative agent for the Debtors' prepetition secured credit facility and post-petition debtor-
in-possession financing facility; (v) counsel to The Bank of New York Mellon Trust Company
N.A., the successor indenture trustee for the Debtors' senior secured notes; (vi) counsel to
{894.001-WOOI8074.}
13
Wilmington Trust Company, the successor indenture trustee for the Debtors' unsecured senior
notes; (vii) counsel to the Restructuring Support Parties; and (viii) all other parties that, as of the
filing of this Objection, have requested notice in these chapter 11 cases pursuant to Bankruptcy
Rule 2002. The Committee submits that such notice is sufficient and that no further notice of the
relief requested in this Objection is required.
WHEREFORE, the Committee respectfully requests that the Court enter the proposed
order attached hereto as Exhibit F allowing the Omega Trust Claim as a Class 5 General
Unsecured Claim in the amount of$12,000,000.00, and otherwise disallowing the claim.
Dated: November 30,2011
{894.001-W0018074.}
LANDIS RATH & COBB LLP
William E. Chipman, Jr. (No. 3818)
Mark D. Olivere (No. 4291)
919 Market Street, Suite 1800
Wilmington, Delaware 19801
Telephone: (302) 467-4400
Facsimile: (302) 467-4450
-AND-
ROPES & GRAY LLP
Benjamin L. Schneider
Mark R. Somerstein
1211 Avenue of the Americas
New York, New York 10036-8704
Telephone: (212) 596-9000
Facsimile: (212) 596-9090
14
{894.001-WOOI8074.}
Steven T. Hoort
Andrew G. Devore
Prudential Tower
800 Boylston Street
Boston, Massachusetts 02199-3600
Telephone: (617) 951-7618
Facsimile: (617) 235-9715
Counsel for the Official Committee of
Unsecured Creditor
15
EXHIBIT A
FORM BID OfIIc:ial Fonn 10114110
UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE
PROOF OF CLAIM
Name of Debtor: PERKINS & MARIE CALLENDER'S INC. case Number: 11-11795
NOTE: This/arm should not be used to malre a an administrative expense arising .'!.1!:r. t!'e commencement ojthe case. A 'request"Jor payment 0/ an
administrative exvense may bili/ed PlUsuant to 11 U.S.c. 503.
Name of Creditor: (The person or entity to whom the debtor owes money or property)
Your claim is scheduled as Il>lIows:
OMEGA TRUST Schedule: F (UNSECURED)
Nature oCCIaim Trade Payable
Claim Amount: $280.439. SS
Name and address where notices should be sent: o Check this box to indicate that this

NIl).. 43-1-MSTR-80339
claim amends a previously filed
claim.
c/o John Demmy, Esq., Stevens & Lee, P.C. Court Claim Number:
1105 North Market Street, 7th Floor
(Iflorown)
Wilmington, DE 19801-1270
Telephone number: (302) 425-3308
Filed on:
Name and address where payment should be sent (if different from above):
o Check this box if you are aware that
Omega Trust
anyone else has filed a Eroof of
NID-943-I-MSTR-80339 claim relating to your c aim. Attach
Attn: Brian Schwen
copy of statement giving particulars.
250 Lake Drive East
o Check this box if you are the debtor
Chanhassen, MN 55317 or trustee in this case.
Teleohone number: (952) 294-5215
1. Amount of Claim as of Date Case Filed: $55,053,953.27
5. Amount of Claim Entided to
Priority under 11 U.S.C. ,507(a).
If all or part of your claim is secured, complete item 4 below, however, if all of your claim is unsecured, do not complete
If any portion of your claIm laDs
item 4. .
iu oue ofthe lolowing categories,
check the bo][ and state the
Ifall or part ofyoUJ claim is entitled to priority. complete item 5.
amount.
0 Check this box if claim includes interest or other charges in addition to the principal amount of claim. Attach itemized
Specify the priority of the claim.
statement of interest or charges.
o Domestic obligations under
2. Basis lor Claim: Contract (see attached)
II U.S.C.5 (a)(I)(A) or (a)(I)(B)
(See instruction #2 on reverse side.)
o Wages, salaries, or commissions (up
to $I1,725*) earned within 180
3. Last four digits of any number by which creditor identifies debtor:
days before filinS of the bankruptcy
getition or cessation of the debtor's
3a. Debtor may have scheduled account as:
usiness. whichever is earlier - 11
(See instruction #3a on reverse side.)
U.S.C. S07(a)(4)
o Contributions to an
benefit plan - II u.s. . 07(a)(5)
o Up to $2,600 of deposits toward
4. Secured Claim (See instruction #4 on reverse side.)
purchase, lease, or rental of property
or services for personal, family, or
Check the appropriate box if your claim is secured by a lien on property or a right of setoff and provide the requested
household use - II U.S.C. 507
information.
(a)(7)
Nature of property or right of setoff: o Real Estate o Motor Vehicle 181 Other
o Taxes or penalties owed to
Describe: Setoff
units - II U.S.C.
Value of Property: $4,446,229.00 Annual Interest Rate %
507 (a)(8)
Amount of arrearage and other charges as of time case flied Included in secured claim,
181 Other - Specify
of II .S.C. 507(a):
Ifany: $ Basis for perfection:
507(a)( )
Amount of Secured Claim: $4,446,229.00 Amount Uusecured: $50,607,724.27
Amount entided to priority:
$666,664.00
6. Credits: The amount of all payments on this claim has been credited for the purpose of making this proof of claim.
"Amounts are subject io adjustment on
7. Documents: Attach redacted copies of any documents that supS0rt the claim, such as promissory notes, purchase orders,
4111/3 and ellery 3 years thereafter
with respect to cases commenced on or
invoices, itemized statements of running accounts, contract, ju gments, mortgages, and security agreements. You may
after the date of adjustment.
also attach a summary. Attach redacted copies of documents providing evidence of perfection of a security interest. You
may also attach a summary. (See instruction 7 and definition 0/ "redacted" on reverse side.)
DO NOT SEND ORIGINAL DOCUMENTS. ATTACHED DOCUMENTS MAYBE DESTROYED AFTER SCANNING.
If the documents are not available, please explain:
FILED
Date:
..... _ Tho a 51", "'" prin'_ "'" tid, If..,. " ..
FOR COURT USE ONLY
"""tw oc ""'" "" """" In f ili' "'" "'. """" ... """_ """"" if
hUG 162011
August 12, 2011
- A h pyor"""'.'71f"".
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Penalty or presentingfraudulent claim: Fme of up to $500,000 or Impnsonment tor up to 5 years, or both.
18 U.S.C. 15Iand35'
ATTACHMENT TO PROOF OF CLAIM OF
OMEGA TRUST
In re: Perkins & Marie Callender's Inc.
Case No. 11-11795 (KG)
1. PreliminarY Statement. The Trusts, as defined below, are the present holders of a grant
from a predecessor of the debtor Perkins & Marie Callender's Inc. of territorial
exclusivity for Perkins restaurants in Iowa and Wisconsin. Under a Royalty Agreement,
as defined below, the debtor has been pennitted to own, operate and franchise Perkins
restaurants in Iowa and Wisconsin in exchange for specified payments. The Trusts
submit this proof of claim as a precaution in the event that the debtor elects to breach the
Royalty Agreement on which the claim is based and contends that the Royalty
Agreement is not an executory contract. The claim is filed without waiver of claimants'
other remedies available at law or in equity, including, without limitation, the right to
prohibit the debtor, on account of the breach, from owning, operating or franchising
Perkins restaurants in the states of Wisconsin and Iowa.
In addition, although the proof of claim is filed primarily as a general unsecured claim,
the Royalty Agreement specifically refers to a Security Agreement. A copy of the
Security Agreement has not yet been located. The tenns of the Security Agreement may
warrant further amendment to the claim.
2. Basis of Claim. In an agreement dated February 1, 1977, Perkins Cake and Steak Inc., a
Minnesota corporation to which the debtor Perkins & Marie Callender's Inc. is the
ultimate successor, entered into an agreement with three trusts created for the benefit of
the daughters of Wyman D. Nelson pursuant to a Trust Agreement dated December 23,
1976by and among Wyman D. Nelson as Trustor and Reynolds M. Anderson, Richard S.
Taylor and Howard S. Cox as Trustees (the "Old Trusts") (the "Original Agreement"). A
copy of the Original Agreement is annexed to this attachment as Exhibit A.
1839777v3
The Original Agreement was amended pursuant to an Amendment to Agreements
executed on or about June 26, 1992 by and among the Old Trusts, Perkins Restaurants
Operating Company, LP, a Delaware limited partnership (and successor to Perkins Cake
and Steak Inc. and predecessor to the debtor), and Omega Foods Inc., a South Dakota
corporation (the "First Amendment"). A copy of the First Amendment is annexed hereto
as Exhibit B.
The Old Trusts were merged into trusts created pursuant to the Trust Agreement dated
January 30, 1978 by and among Wyman D. Nelson, as Trustor, and Reynolds M.
Anderson, Richard S. Taylor, Howard S. Cox and National Bank of South Dakota as
Trustees for the benefit of Wyman D. Nelson's three daughters (collectively, the
"Trusts"). The Trusts are commonly referred to collectively as "Omega Trust." In
connection with the merger, the Trusts accepted and assumed all of the rights, duties and
obligations of the Old Trusts under the Original Agreement as amended by the First
Amendment. .
_---------_ ...... _ ... __... _._-_.-
Perkins Restaurants Operating Company, LP and the Trusts further amended the Original
Agreement pursuant to a Second Amendment to Agreement dated June 11, 1996, a copy
of which is annexed hereto as Exhibit C.
The Restaurant Company, a predecessor of the debtor, was successor-in-interest to
Perkins Restaurants Operating Company, LP. It entered into an Agreement to Extend
Term of Second Amendment to Agreementdated January 10,2001 with the Trusts. A
copy of this first extension is annexed hereto as Exhibit D.
The Restaurant Company and the Trusts further extended the term of the Second
Amendment to Agreement pursuant to an Agreement to Extend Term of Second
Amendmentto Agreement dated June 10,2006 (the "Second Extension"), a true and
correct copy of which is annexed hereto as Exhibit E.
The Original Agreement, as amended and extended, is hereinafter referred to as the
"Royalty Agreement."
From the inception of the Royalty Agreement in 1977 until mid-2011, the debtor and its
predecessors in interest made regular royalty payments to the Trusts based on the Royalty
Agreement. In exchange, the debtor was permitted to franchise, own and operate Perkins
restaurants in the states of Iowa and Wisconsin. In addition, the Trusts waived their right
to receive initial franchise fees otherwise payable at the inception of any new "Franchised
Restaurant," as that term is defmed in the Royalty Agreement. The Royalty Agreement
contemplates that the debtor will continue to make these royalty payments to the Trusts
for so long as any restaurants are franchised, owned or operated by debtor in the States of
Iowa and Wisconsin.
3. Computation of Claim Amount. The following are the royalty payments received by the
Trusts for the five complete calendar years prior to June 13,2011, the date the debtor
filed -lts voluntary Chapter 11 petition:
1839777v3
Year
2010
2009
2008
2007
2006_ .
. Total:
Average:
Royalty Payment
1,855,631.46
1,933,270.58
2,023,975.00
2,130,585.47
2,066.304.79
10,009,767.30
2,001,953.46
The present value of a stream of payments at this annual rate is
computed by dividing the current thirty-year treasury rate of3.7%
into the average annual payment of $2,001,953.46. This yields a
claim amount for damages for future payments of:
Unpaid pre-petition payments pursuant to the debtor's schedules:
2
$54,106,850.27
$280,439.00
Post-petition administrative claim payments from June 13,2011
through proj ected confirmation date of October 31, 2011. Four
payments at $166,666.00 each:
Total Amount of Claim:
$666,664.00
$55,053,953.27
4. Set-Off Right. According to the First Amendment annexed hereto as Exhibit B, the
debtor granted to Omega Foods Inc. the right to offset against the royalty fees due to the
debtor under the Commitment Agreements on the Franchise Agreements (as defined
therein) "such amounts, in whole or in part, which may be due to Omega Trust under the
1977agreement." The Franchise Agreements and Commitment Agreements relate to two
Perkins Family Restaurants, one each in Venice, Florida and Bradenton, Florida. Both
restaurants are beneficially owned by the Trusts. To the extent the set-off rights are
exercised in the future, their present value would represent a credit towards the total
proof of claim.
For the four complete calendar years prior to the petition date, the royalties payable for
the Bradenton and Venice, Florida restaurants are as follows:
Year
2007
2008
2009
2010
Totals:
Bradenton
77,332.00
75,832.00
68,517.00
65,412.00
287,093.00
Venice
97,135.00
97,960.00
90,000.00
85,854.00
370,949.00
Grand Total: 658,042.00
Average: 164,510.50
Applying a discount rate of 3.7% yields a present value for
the set-off right of: $4,446,229
Grand total: $50,607,724.27
Administrative expense portion of claim (estimated): $666,664.00.
5. Reservation of Rights. These calculations are based on information presently available.
1839777v3
For example, the debtor has not reported its sales on the applicable Iowa and Wisconsin
restaurants since shortly before the petition date, has not reported its plans for future
development of additional Perkins restaurants in Iowa and Wisconsin, and has not
furnished its projections as to future revenues.
Claimant reserves the right to amend or supplement this proof of claim at any time and in
any manner and to file proofs of claim for any additional claims, including claims of
setoff, that may be based on the same or additional documents or grounds of liability
including, but not limited to, administrative expenses.
3
"
AGREEf'1ENT
,Dated: February 1. 1977
Parties: Reynold M. Anderson, Richard S. Taylor and Howard S. Cox
as Trus,tees' under the Trust Agreement dated December 23,
1976. with Wyman D. Nelson (hereinafter, called nOmega
Trust") and
Perkins 'Cake and Steak. Inc. (hereinafter referred to as
"Pel;'kins")
RECITALS:
A. Omega.Trust is a trust owning all to franchise restaurants
in the states of Iowa and Wisconsin pursuant to the Franchise
Development Agreement dated September 26. 1969. by Perkins
'Fancake Houses, Inc., acting as agent on behalf of Perkins
Foods. Inc' . with D. Nelson, said Wyman D. Nelson having
assigned.his to Omega Trust by an Assignment dated
December 23. 1976.
B. Omega Trust desires to assign,its rights' under said Franchise'
Agreement Perkins in consideration for which
Perkins agrees to accept and perform obligations set forth
in said Franchise Agreement well 'as to perform
certain other obligations as is more fully set forth herein below,
IT' IS THEREFORE AGREED:
The following terms shall have the following meanings when used
in this Agreement:
A. Gross Sales shn1l mean the totRl amount of all
sales of all food. merchandise, or services sold or rendered
E.XHIBIT
A
hy ... my Franchised Restaurants (excluding only sales of cigars,
cigarettes', newspapers, and merchandise sold from vending
machines) less the amount of refunds, allowances, or discounts
'to customers and sales tax levied thereon.
B. Franchised Restaurants - shall mean any now 'existing
or developed restaurants franchised, owned, or operated
'by Perkins, or' any of its affiliated or related companies, whether
or not said restaurants are being operated pursuant to a formally,
executed franchise agreement, witnin the states of Iowa and
Wisconsin.
.
C. Territory - shall mean the geographical area within
the political boundaries of state of Iowa and Wisconsin.
2. AssiSI!ment and Assumption.,
A. Omega Trust does hereby assign, sell and set over to
.
Perkins all of its respe,ctive right, title and interest in and
to the Franchise Development Agreement, and further, Omega Trust
does hereby assign, sell and set over unto Perkins all of its
respective interest in any Franchised Res,taurants within the
',Territory.
B. Perkins hereby assumes and agrees to perform all the
obligations set forth in the Pranchise Development Agreement
and 'to1ill:,' indemnify and hold Omega Trust harmless from any
, liability resulting from any breach or claimed breach of said
Franchise Development Ap.reement.
3. Payment to' Trust of Continuing Fees. In consideration
of the execution of this Agreement by Omega Trust, Perkins hereby
-2-
:lgrceR to pny to Omer,n TruRt t\I10 per.cent (2%) of r.roRR Snlcf; of '1] t
Franchised Restaurants Territory:
4. }{ethod .of Payment. On the 20th day of each month during
the full term of this Agreement, Perkins shall pay to' Omega Trust
or its nominee 2% of the monthly Gross Sales of all Franchised
Restaurants located in the Territory. The first payment shall be
due Omega on the 20th day of February. 1977, and on the 20th day of
each month thereafter. Omega shall be furnished by Perkins with
a monthly summary of sales submitted by each Franchised
. .
Restaurant. This monthly summary shall be furnished .at the same
time and inthe same manner as the payments to Omega Trust as
herein before provided. Additionally, Omega Trust shall be given
. access to each Franchise Agreement issued by Perkins for a Franchised
Res.taurant the Territory.
5. Initial Franchise Fee. In consideration for Perkins under-
taking the obligation to assist in the opening the new Franchised
the development of a training program, ongoing super-
vision, and other dutias under the Franchise Development Agreement,
.Omega Trust waives all rights to the initial franchise fees paid at
the inception of the new Franchised
6. Expense Reimbursement. Omega Trust. agents and employees
may, but shall not be required to. assist in the investigation. and
selection of franchisees and Franchised Restaurant locations. Neither
... Omega Trust nor its agents or employees shall. in such event, however,
share in any of the initial franchise jees generated as a result
thereof. However to the-extent that Omega Trust incurs any
in connection therewith, Omega Trust shall be entitled to orompt
-3-

reimbursement therefore 'from Perkins, nrovided that exncn::;CR arc
. "
properly documented, are in a reasonable amount. and do not exceed
$25.000 with respect to anyone transaction or location.
7. Security Agreement. Simultaneously with the execution
of this Agreement. Perkins shall enter into a Security Agreement
and aDprooriate financing statements perfecting a security interest
in favor of Omega Trust in the Franchise Development Agreement, a
copy of which Se.curity Agreement is attached hereto as Exhibit A
and incorporated herein by reference. '
8. Exoenses of Collection. Should it be necessary for Omega
Trust to commence any legal action to collect any amounts due under
this Agreemen,t. Omega Trust shall be entitled to recover from Perkins
al(;mg with amounts due her,eunder also all of its expenses of. collection,
including reasonable attorneys 'fees.
, 9. Events of Default., This Agreement shall be deemed to be in
default upon the occurrence of any of the following events:
1) Failure of Perkins to pay monies owed Trust
to the terms of this Agreement within 90 days following
the date that such sums become due and payable.
2) The filing by Perkins of a voluntary petition requesting
relief from the claims of creditors under any chapter under .
,bankruptcy act. seeking, the appointment of a statutory receiver
under the of any applicable state statutory prOVision,
making an assignment for the benefit of the creditors, or
failing to secure the dismissal of a petition in involuntary
bankruptcy within 90 days after the filing of such petition
or complaint.
-4-
3) The breach by Perkins of any of the terms and
conditionS' of this' Agreement.
10. Notice of Default. As a condition precedent to, and in
to enforce the security attached hereto and executed
in conjunction herewith, Omega Trust shall be required to mail
notice of default to Perkins stating that:
A. This Agreement dated the 1st day of February, 1977,
by and between Perkins and Omega Trust is default.
B. If the default involves. nonpayment, . that the obliga-
tion to pay certain'monies contained in this Agreement is in
arrears for not less than 90 days.
C. If the default is one not requiring the of
monies, then the nature of the default is in sufficient detail
so as to identify the subject matter thereof.
D. That Perkins has ,a period of thirty days from the
date of receipt of said notice to cure the defaults therein
listed.
If the default is not cure.d within the th,irty day period, then
Omega Trust shall be entitled to exercise all of its rights as a
s'ecured 'Party under the aforesaid Security Agreement.
11. Notices. Any 'notices required or permitted to be given
pursuant to the terms hereof or pursuant to the attached Security
Agreement shall be deemed sufficient sent, nostage prepaid, by
certified United Sta.tes mail as follolfs:
Trust: Omega Trust
Howard S. Cox, Trustee
2022 IDS Center
55402
-5-
Perkins: Edward C. Suttle
Perkins Cake & Steak, Inc.
4917 Eden Avenue
Edina. Minnesota 55428
12. Warranties and Representations. Omega Trust warrants and
represents that it has full and complete authority ~ d e r the Trust
'Agreement dated December 23. 1976 with Wyman D. Nelson to oerform
this agreement according to its terms. Perkins warrants and represents
that it is uader no legal disabilities and that the execution and
performance of this Agreement does not violate theterms and conditions
of 'any loan agreements. security agreements or other agreements or
c9ntracts to which it may be a party and that the director and share-
. holcler approval is not required.
13. Miscellaneous.
A. This Agreement and the attachments constitute the.
entire Agreemebt between the parties and no amendment or
modification shall be effective unless reduced to 'tn-iting, signed
by the parties and a p ~ e n d e d hereto.
B. The . paragral'h headings used herein are for the
convenience of the parbies only and constitute no part of this
Agreement.
C. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Minnesota .
. D. This "Agreement shall survive the closing ancl shall be
..
binding upon and inure to the benefit of the heirs, executors,
administrators, successors in interest and as.signs of the parties
hereto.
-6-
1"
..
This Agreement is executed the day and year first above written.
PERKINS CAKE AND STEAK. INC.

Its
OMEGA TRUST
. .'
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.'
f
/.
:
. r .
: ..
AMENDMENT TO AGREEMEN'fS
The parties to this Amendment are Perkins Restaurants Operating Company,
l.P. ("Perkins"j.;iuccessor in interest to Perkins Cake and Steak, Inc.),
Howard S. Cox, %rc&tIJ,J ..r. and r ... #le ,as trustees
under a trust agreement dated December 23, 197 with Wyman Nelson (HOmega
Trust"), and Omega Foods, Inc. .
This is an amendment to that certain agreement between the parties dated
. February I, 19n, a copy of which is attached hereto as Exhibit A (the 1I19n
Agreement"). t-.i,s ... .:th.ft
Franchise Agreements, as defined between Perklns and omega FoOds, "Inc.
BACKGROUND FACTS
Under the 1977 Agreement, Omega Trust assigned to Perkins its rights to
franchise Perkins restaurants in the states of iowa and Wisconsin (the
IITerritory"), which Omega Trust had obtained under a Franchise Development
Agreement. .
In exchange for those rights, Perkins aqreed to pay to Omega Trust two
percent (2%) of the. gross sales of all franchlsed restaurants (tbe
as defined in the 1977 Agreement.. .
Omega Trust has sought Perkins' consent for Omega Foods, Inc. to acquire
the franchise rights for two existing Restaurants, one each in
Venice, Florida and Bradenton, Florida (the In exchange for
Perkins' consent to Omega Foods, Inc.'s acquisition of the Restaurants, Omega
Trust hereby agrees to grant to Perkins the right to offset against
Continuing Fee payable to Omega Trust under the 1977 Agreement aqy royalty
fees which are due but unpaid under the commitment agreements for the
Restaurants (the nCommitment Agreements
U
) and the franchise agreements for the
Restaurants (the uFrancbise Agreements
H
), and Perkins hereby agrees to grant
to Omega Foods, Inc. the right to offset against the royalty fees to
Perkins under the Commitment Agreements and the Franchise Agreements aqy
CO!1tinuing Fees which are due but unpaid under the 1977 Agreement.
TERMS OF THE AGREEMENT
In consideration of the circumstances described above and the following
promises the parties will be making to each other by signing this Amendment,
the parties mutually agree as follows: . .
1. Subject to the conditions set forth below, Perkins hereby grants
to Omega Trust its consent to permit Omega Foods, Inc. to acquire the .
Restaurants.
2. Omega Trust hereby grants to Perkins the right, but not the
obligation, to offset against the Fee due to Omega Trust such
royalty fees, . in whole or in part, which may be due to Perkins under the
Commitment Agreements and the Franchise Agreements.
3. Perkins hereby grants to Omega Foods, Inc. the right, but not the
obligation, to offset against the fees due to Perkins under the
and the Franchise Agreements such amounts, in whole or
1n part, WhlCh may be to Omega Trust under the 1977 Agreement.
EXHIBIT
.j.
B
\
-
....
.
4. If either party must take action to enforce this Amendment, the
prevailing party in such action shall be entitled to recover from the non-
prevailing party all costs and expenses incurred in the enforcement, including
attorney fees, whether or not a lawsuit is commenced.
5. This Amendment will be binding upon the successors and assigns of
the part i es .' .
6. The provisions contained in this Amendment shall be severable, and
the unenforceability of anyone provision shall not affect the enforceability
of any other provision or the remainder of this Amendment.
7., The failure of any party to enforCe any condition or provision of
this Amendment at any time shall not be construed as a.waiver of that
condition or privilege, nor shall it operate as a forfeiture of any right to
future enforcement of such condition or provision. .
8. All other terms and conditions of the 1977 Agreement. the
Commitment A9reements and the Franchise Agreements remain in full force and
effect.
9. This Amendment' shall be governed 6y the law of the State of
Minnesota.
OMEGA FOODS, INC.

ITS: 1
J
2
."'., z .. ,
. .. . ..

EXHIBIT A
Dated: February 1. 1977
Parties: Reynold M. Anderson, Richard S. Taylor and S. Cox
as Trustees under the Trust Agreement dated Occember 23.
1976, with Wyman D'. Nelson (hereinafter called "Omega
Trust") and
RECITALS:
'Cake and Steak, Inc. referred to as
"Perkins")
A. Trust is a trust owning all to franchise restaurants
in the states of Iowa and Wisconsin pursuant to the Franchise
Development Agreement dated September 26, 1969. by Perkins
Pancake Uousea. Inc., acting as agent on behalf of Perkins
Foods, Inc., with D. Nelson, said Wyman D. Nelson baving
assigned his rights to Omega Trust'by an Assignment dated
23, 1976.
B. Omega Trust desires to assign its rights under said Franchise'
Development Agreement to Perkins in consideration for which
Perkins agrees to accept and perform the obligations set forth
in said Franchise Development Agreement as well'as to perform
certain other obligations as is more fully set forth herein below.
IT IS THEREFORE AGREED:
1. The following terms shall have the following meanings when used
in this ARreement:
A. GroAs Stllcs - ,;hnl) thl' hlLnl mnount of n1l
sales of all food, merchandise, or services sold or 'rendered
. ;
--.--._--_.--_._ ..... ---------------------
.'
.' ..
hy nny Fr:mchiscd ltcstnur:ant,; (cxchuli on I y snleR of ciWJ!"s.
cigarettes. newspapers. and sold from vending
machines) less -the aUlount of refunds. or discoullts
to customers and sales tax levied thereon.
B. Franchised Restaurants - shall mean any now existing
,
or hereafter developed restaurants franchised. owned, or operated
by Perkins. or any of. its affiliated or companies, whether
or not restaurants are -being operated pursuant to a formally
.
executed franchise agreement. witliin -the states of Iowa and
Wisconsin.
C. Territory - shall mean the geographical area within
'" II.... .. , : _. .... ...
boundaries of the state of Iowa and Wisconsin
III, .. -JI'" .11.
1
:.1 .. ':' . "" ;,1
2 0 Assignment and AssumDtion.
If'
A. Omega Trust does hereby assign, sell and set. over to
0_
Perkins allof title and interest in and
to the Franchise Development Agreement. and further, Omega Trust
f
..
does hereby assign, sell and set over unto Perkins all of its
respective in Franchised Restaurants within the
. ".
Territory.
Bo. Perkins hereby assumes and agrees to perform all the
obligations set forth in the -Franchise nevelopment Agreement.
and indemnify and hold Omega Trust from any
liability resulting from any breach or claimed breach of said
Franchise Development Ar.reemento
3. Payment to Omega Truf;t of Conti.nuing Ti'ees. In consideration
of the execution of this Agreement by Omelta Trust, Perkins hereby
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. '.
.....
..

( .'
Co p:ly tn

r S:,hj:;
or :tI)
Franchised Restaurants i(lcated in the Territory.
4. t1ethod of Paynumt. On the .20th day of each month during
the full term of' this Agreement, Perkins shall pay to Omega Trust
.. -- -_ . ..--: ... -,--.
Dr its nominee of the monthly Gross of all Franchised
Restaurants located in the Territory. The first payment shall be
due Omega on the 20th day of February, 1977, and on the 20th day of
each month thereafter. Omega shall be furnished by Perkins'with
.
a monthly summary of sales submitted by each Franchised
Restaurant. This monthly summarY.shall be furnished at the same
time and in the same manner as the payments to Omega Trust as
herein before urovided. Additionally. Omega Trust shall be given
I
access to each Franchise Agreement issued by Perkins for a Franchised
Restaurant within the Territory.
5. Initial Franchise Fee. In consideration for Perkins under-
taking the obligation to assist in the opening of the new Franchised
Restaurants, the development of a training program, ongoing super-
vision, and other duties under the Franchise Agreement,
Omega Trust waives all rights to the initial franchise fees
the inception of the new Franchised Restaurants.
6. Expense Reimbursement. Omega Trust, its agents and employees
may, but shall not be to, assist in the investigation and
selection of franchisees and Franchtsed Restaurant locations. Neither
Omega Trust nor its agentR or cmnloyees shall. in such event. however,
share in any of the initial franchise fees generated as a result
thereof. However to the extent that Omega Trust incurs any expenses
) in connection therewith. Omega Trust shall be entitled to
-3-
. .. . '. -..
. '
ruilliburscmcn c therefore (1"0111 I'crk i 1\::;. p rnvidcu eh;! t cX!l"n,;cR :-Ire
properly documented I :Ire in n amount, lind: do no t excec:!u
$25,000 with respect to anyone transaction or location.
7. Security Agreement. Simultaneously with the execution
of this Agreement, Perkins shall enter into a Security Agreement
and aDpronriate financing statements perfecting a security interest
in favor of Omega Trust in the Franchise Development Agreement,.a
copy of which Security Agreement is attached hereto as Exhibit A
and incorporated herein by reference. .
8. EXDenses of Collection. Should it be necessary for Omega
Trust to commence any legal action to collect any amounts due under
this Agreement, Omega Trust shill be entitled to recover from Perkins
amounts due hereunder also all of its expenses of collection.
including reasonable attorneys fees.
9. Events of Default. This shall be deemed" to be in
default upon the occurrence of .any of the following events:
1) Failure of Perkins to pay monies owed Omega Trust
.pursuant to the terms of this Agreement within 90 days followinG
the date that such sums become due and payable .
. 2) The filing by Perkins of a voluntary petition requesting
relief from the claims of creditors under any chanter under
act, seeking the appointment of a statutory receiver
under the terms of any applicable state statutory proviSion,
making an nRS ignment for the benefit of the creditors, or.
failing to the dismissal of a petition in involuntary
bankruptcy within days after. the filing of such petition
or complaint.
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. ;.
;
:.
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3) 'rh(' hrc:tch hy l'(,I-ldnt-; of lilly or the terln!; :md
conditions of this Ar,recment.
10, Notice of Default. As a condition precedent to, and in
order to enforce the security interest attached hereto and executed
in conjunction herewith, Omega Trust shall be required to mail
notice of default to Perkins stating that:
A. This Agreement dated the 1st day of February. 1977.
by and between Perkins and Omega Trust is in default;.
B. If the default involves. nonpayment.' that the obliga-
tion to pay certain monies contained in this Agreement is in
arrears for not less than days.
C. If the default is one not requiring the nayment of
monies, then the nature of the default is in sufficient detail
so as to identify the subject matter thereof.
D. That Perkins bas a period of thirty days from the
. date of receipt of said notice to cure the defaults therein
listed.
If the default is not cured within the thirty day period, then
Omega Trust shall be entitled to exercise all of its rights as a
secured party under the aforesaid Security Agreement.
11. Notices. Any notices required or to be given
pursuant to the terms hereof or pursuant to the attached Security
Anrcetneni: RhnJl be deemed sufficient: if sunt. noqcllr.e prepnid, by
certified United SCntes m:)tl addressed liS
Omega Trusc: Orner-a Trus t
lIoward S. Cox, Trustee
2022 IDS Center
'finneapolis, Minnesota 55402
-5-
,
. ,
r--------------------------------
I
,
....
- .
. .
Perkin,.: Edwilrd r.. 5utth'
Perkin,. Gake ,. Steak, Inc.
1,917 Eden Avenue
E_dina. t.Unnesota 55428
12. Warranties and Representations. Omega Trust warrants and
represents that it has full complete authority under the
Agreement dated December 23, 1976 with Wyman D. Nelson to Derform
this agreement according to its terms. Perkins warrants and represents
that it is under no legal disabilities and that the execution and
performance of this Agreement does not the-terms and conditions
of any loan agreements, security agreements, or other or,
contracts which it may be a party and that the director and share-
holder approval is not required.
13. Miscellaneous.
A. This and the attachments constitute the
entire Agreement between the parties and no amendment or
modification shall be effective unless reduced to writing, signed
by the parties and appended hereto.
B. paragraph headings used herein are for the
convenience of the parties only and constitute no part of this
Agreement. '
C. This Agreement shall be interpreted and construed in
accordance with the laws of the State of
D. This Anreoment shall survive the closing and shall be
bindinn upon and inure to the be,nef 1. t of tho heirs. executors.
administrators, successors in interest nnd assigns of tile parties
hereto.
-6-
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r
... -
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-,
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l'his 'is executed the day and year first above' written.
PERKUIS CAKE AND STEAK, INC.
OMEGA TRUST
-7-
L
SECOND AMENDMENT TO AGREEMENT
Tms SECOND AMENDMENT is made and entered into as of the 1.l:t1o.. day of
J , 1996. by and among Perkins Restaurants Operating Company.
L.P., a Delaware limited partnership ("Perkins"), and the three undersigned TIUSts created
pursuant to that certain Trust Agreement dated Janu8l)' 30. 1978. by mid among
Wyman D. Nelson, as Trustor, and Reynold M. Anderson, Richard S. Taylor, Howard S.
Cox and National Bank of South Dakota, as Trustees. for the benefit of the Trustor's
three daughters (collectively the "Trustsj.
WHEREAS, pursuant to a Trust Agreement dated December 23. 1976. by and
among Wyman D. Nelson, as and Reynold M. Andersou,'Richard S. Taylor and
Howard S. Cox, as Trustees, three separate trusts were created for the benefit of the
Trustor's daughteis (the "Old Trusts"'); .
WHER.BAS. the Old Trusts entered into an Agreen1ent dated February I, 1977,
with Perkins' Cake and Steak, Inc.. a Minnesota coxporatiOD, which provides for the
payment of certain royalties by Perkins' Cake and Steak, Inc. to the Old Trusts on the
gross sales of certain Perkins' restaurants (the "Original Agreement");
WHEREAS, Perkins is the successor by merger to all ofthc duties and
obligations of Perkins' Cake and Steak, Inc. under the Original Agreement;
WHEREAS, the Original Agreement has been amended pursuant to an
Amendment to Agreements executed on or about June 26. 1992, by and among the Old
Trusts. Perkins and Omega Foods, Inc a South Dakota colpOration, a true and correct
copy of which is attached hereto as Atnlchment l.(the "First
WHEREAS, the Old Trusts have been merged into the Trusts and, in connection
with such merger, the Trusts have accepted and assumed all of the rights, duties and
obligations of the Old Trusts under the Original as amended by the First
Amendment (the Original Agreement as 2Illended by the Fim Amendment is hereinafter
referred to as the "Royalty and
WHEREAS, Perkins and the Trusts desire to amend the Royalty Agreement in the
manner hereinafter set forth. .
NOW, TIlEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Reduction in Rqyaities. Notwithstanding any provision oftbe Royalty
Agreement to the contrary, the parties hereto acknowledge and agree that, subject to the
provisions of paragraph 5 Perkins shall pay the Trusts a royalty in the amount of
one and one-half percent (1-1/2%) of the Gross (as that term is defined in the
EXHIBIT
, .
c
'/ I

Royalty Agreement) of all Franchised Restaurants (as that tenn is defined in the Royalty
Agreement) which are opened within the states ofIowa and/or WISconsin during the term
of this Second Amendment. Notwithstanding the foregoing. the parties hereto
acknowledge and agree that Perkins shall continue to pay royalties to the Trusts in an
amount equal to two percent (2%) of the Gross Sales ofall Franchised Restaurants
located in the states of Iowa andlor Wisconsin as of the date of this Second A.m.endment
and such royalties shall continue at the two percent (2%) rate upon the extension andlor
. renewal of any related :franchise agreement
2. Reduction in Franchise Royglties. PerkinS agrees that any commitment
agreements to issue franchise asreements, franchise agreements, and other similar
agreements which it enters into during the tenn of this Second .Amendment with any
franchisees providing for the ownership and operation of Franchised Resta:tuants in the
states of Wisconsin and/or Iowa shall provide for the payment ofmyalties by such
franchisees to Perkins at a rate not to exceed the rate then gencra11y being charged by
Perkins to franchisees to operate similar Franchised Rstaurants in aD states otber than
Iowa and WlSCOnsin plus one percent (1 %).
3. Development Efforts. Perkins agrees that during the term of this Second
Amendment, it will use reasonable efforts to recruit new licensees and to encourage its
existing licensees to develop Franchised Restaurants in the states ofIowa and WISCOnsin.
4. Additional Dm]opmcnt by tbe Tnws- Perkins agrees that during the tem1
of this Agreement, it will not unreasonably withhold its consent to any application by the
Trusts and/or any of their affiliates for a license to own and operate any new Perkins
Family Restaurants or to obtain the transfer of the rights to own and operate any existing
PerkinS Family Restaurant, in each case regardless of the location. In considering any
application of the Trusts Or any Perldns will apply the stan,dards then being
applied to all applicants for licenses to operate Perkins Family Restaurants and will not
discriminate against the Tiusts or any affiliate in the application of suCh standards, and
will devote to such applications the same efforts as then being devoted to the applications
of other exiSting and prospcctive Jicensees of Perkins FamUy Restaurants.
5. Grandfather Clapse. The parties agree that Perkins may close one or more
existing Franchised Restaurants opemted by it in the of Iowa or Wisconsin during
the term of this Second Amendment ifPerldns determines. in good faith, that such
restaurants cannot continue to be operated at a profit (a 4'Closed Restaurant"); provided.
however, that if Perkins, directly or indirectly, opens a new Franchised R.estmmmt
operated by it or any franchisee (a "New Restaurant") at any time during the period of
three (3) years following the closing of any Closed Restaurant within a radius of three (3)
miles of such Closed Restaurant, Perkins shall pay the Trusts a royalty inth.e.amount of
percent (2%) of the Gross Sales of such New Restaurant unless Perkins establishes to
the reasonable satisfaction of the Trusts that the royalties payable by Perkins to the Trusts
with respect to such New Restaurant at the one and one-half percent (1-112%) rate win
exceed the royalties paid at the two percent (2%) rate with respect to the Closed
2
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. "
. .
Restaurant it replaces because the Oross Sales of such New Restaurant are xeasonably
expected to be greater. In the event that any Franchised Restaurant operated by any
franchisee of Perkins in the states ofIawa or WISCOnsin is closed during the tenn of this
Second Amendment and a new Franchised Restaurant operated by Perkins or any
:franchisee is thereafter opened within a radius of three (3) miles of such closed restaurant
within three (3) years following the close of such closed restaurant. Perkins shall pay the
TrUsts a royalty in the amount of two percent (2%) of the Gross Sales of such new
restaurant unless PerkiQS establishes to the reasonable satisfaction of the Trusts that the
royalties payable by Perkins to the Trusts with respect to such new restaurant at the rate
of one and one-halfpercent (1-112%) will exceed the royalties paid at tlie rate of two
percent (2%) with respect to such closed restaurant.
6. ram. The parties hereto acknowledge and agree that the ter.m of this
Second Amendment shall be five (5) years COJDJDenCing on the date hereof.
Notwithstanding the foregoing, the royalties payable by Perkins to the Trusts with respect
to any Franchised Rcstaumnts with a one and onc-halfpercent (1-112%) royalty rate first
opened during the teml of this Second Amendment shall continue at the rate of one and
one-halfperccnt (1-112 %) of the Oross Sales of such Franchised Rcstaumnts
notwithstanding'the expiration or termination of this, Second Amendment.
7. Renewal. This Second Amendment may be renewed upon its expiration
by the mutual written agreement of the parties hereto.
8. Tennination. This Second Aniendment may be terminated by either party
on thirty (30) days prior wrltten notice to the other in the event such other party violates
any provision hereofin any material respects and fails to cure such violation within thirty
(30) days of the receipt of such notice.
9. Bindina Effect. This Second Amendment shall be binding upon the
parties hereto and their rCSJ:!ective successors and assigns.
10. Enforcement. If either party must take action to enforce this Second
Amendment, the prevailing party in such action sbal1 be entitled to recover !tom the non-
prevailing party all costs and expenses, including reasonable attorneys' fees, incurred in
the enforcement, whether or not a lawsuit is commenced.
11. Cgntinujoi' Effect. Except as amended hereby, the Royalty Agreement
shall continue in full force and effect.
'12. Govemjna Law. This Second Amendment shall be governed by the laws
of the State of Minnesota.
13. Effect of Exratiou or Tennination. The Royalty Agreement shall
continue in full force and effect notwithstanding the expiration or termination of this
Second Amendment.
3
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----------------------------------------------
IN WI'INESS WHEREOF. the parries hereto have executed this Second
Amendment as of the day. month and year first above written.
PERKINS:
PERKINS RESTAURANT OPERATINO
COMPANY, L.P OJ by Perkiris Management
.Company, Inc., lis Ococnda
B y i l s ~ ~ U
TRUSTS:
THE mREB SEPARATE TRUSTS
CREATED PURSUANT TO THAT
CERTAIN TRUST AGREEMENT DATED
JANUARY 30. 1978. BY AND AMONG
-, WYMAN D. NELSON, AS 1RUSTOR,
AND REYNOLD N. ANDERSON.
RICHARD S. TAYLOR, HOWARD S.
COX AND NATIONAL BANK. OF
SOUTH DAKOTA, AS TRUSTEES, FOR
TIm BENEFIT OF THE TRUSTOR'S
- THREE DAUGHTERS, RHONDA N.
NELSON. MELANIE M. NELSON AND
MELi:A . PFOHL
C
BY
' ~ ~
HO 4&Ds:COx, TRUSTEE
.J ______
/
4
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I
ATfACHMENT1
AMENDMENT TO AGREEMENTS
The parties to this Amendment are Perldns Restaurants Operating Company.
L.P. ("Perkins"; uccessor in interest to Cake and Steak. Inc.),
Howard S. Cox, 7,,, and .r .. #/e , as trustees
under a trust agreement ate Deceiiiber 23, 1976 with wyman Nelson ('"Omega
Trust""), and OIiIega Foods, Inc.
This is an amendment to that certain agreement between the parties dated
February 1, 1977, a copy of which is attached hereto as Exhibit A (the -1977
Agreement
U
,. Further, this 1s an amendment to the Colllllitment Agreements and
Franchise Agreements, as defined below, between Perkins an4 Omega Foods, Inc.
BACKGROUND FACTS
.Under the 1977 Agreement, Quega Trust assigned to Perkins its rights to
franchbe Perkins restaurants in the states of Iowa and Wisconsin (the .
"Territory"', which Omega Trust had obtained under a Franchise Development
Agreement.
, In exchange for those rights, Perkins agreed to pay to Omega Trust two
percent (2%) of the gross sales of all franchised restaurants (the UContinuing
Fee"), as defined in the 1977 Agreement. .
Omega Trust has sought Perkins' 'consent for Omega Foods, Inc. to acquire
the franchise rights for two existing Perkins Famfly Restaurants, one in
Venice, Florida and Bradenton, Florida (the -Restaurants"). In exchange for
Perkins' consent to Omega Foods, Inc.'s acquisition of the Restaurants, Omega
Trust hereby agrees to grant to Perkins tbe right to offset against the
Continuing Fee payable to Omega Trust under the 1977 Agreement BOf royalty
fees which are ,due but unpai d under the cOIIDttment agreements for the
Restaurants lthe "COIIIIlitment Agreements
U
) and the franchise agreements for the
'Restaurants the n Franchi se Agreements
U
} , and Perkins hereby agrees to grant
to Omega FOD 5, Inc. the rigbt to offset against the royalty fees payable to
Perkins under the Commitment Agreements and the Franchise Agreements
Continuing Fees which are due but unpaid under the 1977 Agreement.
TERMS OF THE AGREEMENT
In consideration of the circumstances described above .ad the
promises the parties will be making to each other by signing this Amendment,
the parties mutually agree as follows: .
1. Subject to the conditions set forth below, Perkins hereby grants
to Omega Trust its consent to permit Omega Foods, Inc. to acquire the
, Restaurants.
2. Omega Trust hereby grants to Perkins the right, but not the
obligation, to offset against the Continuing Fee due to Omega Trust such'
royalty fees, in whole or in part, which may be due to Perkins under the
Commitment Agreements and the Franchise Agreements.
, ' 3. Perkins hereby grants to Omega Foods, Inc. the right, but not the
to offset against the fees due to Perkins under the
and the Franchlse Agreements such amounts, in whole or
1n part, winch may. be due Omega Trust under the 1977 Agreement.
I
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\. 4. If either party must take action to enforce this Amendment. the
prevailing party in such action shall be entitled to recover from the non-
prevailing party all costs and expenses incurred in the enforcement, including
attorney fees, whether or not a lawsuit is commenced.
5. This Amendment will be binding upon the successors and assigns of
the parties. .
6. The provisions contained in this Amendment shall be severable,and
the unenforceability of anyone provision shall not affett the enforceability
of any other provision or the remainder of this Amendment.
7. The failure of any party to enforce any condition or provision of
tMs Amendment at any time shall not be construed as a waiver of that
condition or privilege, nor shall it operate as a forfeiture.of any right to
future enforcement of such condition or provision.
8. All other tems and conditions of the 1971 Agreement, the
Commitment Agreements and the Franchise Agreements remain in full force and
effect.
9. This Amendment shall be governed 6y the law of the state of
Minnesota.
PERKINS RESTAURANTS OPERAnNG COMPANY',- L.P.
BY:
BY:
ITS:
t:IEGA FOODS. INC.
2
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AGREEMENT TO EXTEND TERM OF
, This Agreement to Extend Term is made and eritered into on the.J.ll.1hd.ay of June, 2001,
by and among The Restaurant Company, successor in interest to Perkins Restaurants Operating
Company, L.P. ("TRC',). and three Wldersigned Trusts created pursuant to that certain Trust
Agreement dated January 30. 1978. by and among Wyman D. Nelson, as Trustor, and Reynold
M. Anderson, Richard S. Taylor. Howard S. Cox and National Bank of South Dakota. as
Trustees, for the benefit of the 'mistor's three daughters (collectively the "Trusts'').
WHEREAS, pursuant to a Trust Agreement dated December 23, 1976, by and among
Wyman D. Nelson, as Trustor, and Reynold M. Anderson, Richard S. Taylor and Howard S.
Cox, as Trustees, three separate tIUsts were created for the benefit of the Trustor's daughters (the
"'Old Trusts'');
/WHBREAS, the Old Trusts entered into an Agreement dated February I, 1977, with
Perkiris' Cake and Steak. Inc., a Minnesota cOIpOration, which provides for the payment of
certain royalties by Perkins' Cake and Steak, Inc. to the Old Trusts on the gross sales of cmtain
Perldns restaurants (the "Original Agreement'');
WHEREAS. Perkins Restaurants Operating Company, L.P., a Delaware limited
partnership ("Perkins',). was the successor by merger to all of the rights, duties and obligations of
Perkins' Cake and Steak, Inc. under the OrlginalAgrecment;
WHEREAS, the Original Agreement has been amended p ~ u a n t to an Amendment to
Agreements executed on or about June 26, 1992, by and among the Old Trusts, Perkins and
Omega Foods, Inc., a South Dakota co!poration {the '"First Amendment";
'WHElmAS, the Old Trusts have been merged into the Trusts and, in connection with
such merger, the Trusts have accepted and assumed all of the rights, duties and obligations of the
Old Trusts uncJ.er the Original Agreement, as amended by the FiISt Amendment (the Original
Agreement as amended by the First Amendment is hereinafter referred to as the "'Royalty .
Agreement'');
WHEREAS. Perkins and the Trusts amended the Royalty Agreement in accotdance with
the terms of a Second Amendment to Agreement dated rune 11, 1996 (the "Second
Amendment''); .
WHEREAS, TRC is the successor to all of the rights, duties and obligations of Perkins
under the Royalty Agreement, as amended by the Second Amendment; and
WHEREAS, TRC and the Trusts desire to extend the term of the Second Amendment in
the manner hereinafter set forth. .
NOW. THEREFORE, in consideration of the foregomg premises and for other good and
valuable consideration. the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
42727511
EXHIBIT
D
..
I I
,- .1.,
1. l:mn. The parties hereto aclalowledge and agree that the teIm of the Second
Amendment is hereby extended for a period offive (5) years, commencing on June 12.2001 and
expiring on June 11. 2006, subject to earlier termination as provided for in the Second
Amendment.
2. All terms and conditions of the Royalty Agreement as amended by the Second
Amendment not specifically amended by this Agreement to Extend Term shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to Extend
Tenn as of the day, month and year :first above written.

TRUSTS:
THE THRBB SEPARATE TRUSTS CREATED
PURSUANr TO THAT CERTAIN TRUST
AGREEMBNT DATED JANUARY 30, 1978, BY
AND AMONG WYMAND. NELSON, AS
TRUSTOR, AND REYNOLD M. ANDERSON,
RICHARD S. TA,YLOR, HOWARD S. COX AND
NATIONAL BANK OF SOTUH DAKOTA, AS
TRUSTEES. FOR THE BBNEF1T OF THE
TRUSTOR'S THREE DAUGHERS, RHONDA N.
FOWLER., MELANIE M. NELSON AND
MELINDA N. PFOHL

Lucius L. Tmstee
4'n27S1J 2
I
AGREEMENT TO EXTEND TERM OF
This Agreement to Extend Tenn is made and entered into as of the 10
th
day of JUne,
2006, by and among The Restaurant Company. successor in interest to Perkins Restaurants
Operating L.P. ("TRC"), and the three undersigned Trusts created pursuant to that
certain Trust Agreement dated 1anuary 30, 1978, by and among Wyman D. Nelson, as Trustor,
and Reynold M. Anderson, Richard S. Taylor, Howard S. Cox and National Bank of South
Dakota, as Trustees, for the benefit of the Tnistor's three daughters (collectively the "Trusts").
WHEREAS, pursuant to a Trust Agreement dated December 23, 1976, by and among
Wyman D. Nelson, as Trustor, and Reynold M. Anderson, Richard S. Taylor and Howard S.
Cox, as Trustees, three separate trusts were created for the benefit of the Trustor's daughters (the
"Old Trusts");
WHEREAS, the Old Trusts entered into an Agreement dated February 1, 1977, with
Perkins' Cake and Steak, Inc., a Minnesota corporation, which provides for the payment of
certain royalties by Perkins' Cake and Steak, Inc. to the Old Trusts on the gross sales of certain
Perkins restamants (the "Original Agreement");
WHEREAS, TRe is the successor to all of the rights, duties and obligations of
Perkins' Cake and Steak, Inc. under the Original Agreement; ,
WHEREAS, the Original Agreement has been amended pursuant to an Amendment to
Agreements executed on or about June 26. 1992, by and among the Old Trusts, TRC and Omega
Foods, Inc., a South Dakota corporation (the "First Amendment'?;
WHEREAS, the Old Trusts have been merged into the Trusts and, in connection with
such merger, the Trusts have accepted and assumed all of the rights, duties and obligations of the
Old Trusts under the Original Agreement, as . amended by the First Amendment (the Original
Agreement as amended by the First Amendment is hereinafter referred to'as the "Royalty
Agreement'');
WHEREAS. TRe and the Trusts amended the Royalty Agreement in accordance with the
tenus of the Second Amendment to Agreement dated June 11, 1996 (the "Second Amendment to
Agreement");
WHEREAS, TRe and the Trusts extended the term of the Second Amendment to
Agreement by way of an agreement dated June 10, 2001 (the "First Extension',); and
WHEREAS, TRe and the Trusts desire to extend the term of the Second Amendment to
Agreement in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and
vatuable consideration, the receipt and sufficiency ofwmch are hereby acmowledged, the parties
hereto agree to as follows:
907581v2
EXHIBIT
E
"
'.
1. Tenn, The parties hereto acknowledge and agree that the tetm of the Second
Amendment to Agreement is hereby extended for a period of five (5) years, commencing on June
12,2006 and expiring on 1une 11,2011.
2. AIl terms and conditions of the Royalty Agreement, as amended by the Second
Amendment to Agreement and First Extension not specifically amended by this Agreement to
Extend Term shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
Extend Term as of the day, month and year first above written.
907581v2
TRUSTS:
THE THREE SEPARATE TRUSTS CREATED
PURSUANT TO THAT CERTA1N TRUST
AGREEMENT DATED JANUARY 30. 1978, BY
AND AMONG WYMAN D. NELSON, AS
TRUSTOR, AND REYNOLD M. ANDERSON,
RICHARD S. TAYWR, HOWARDS. COX AND
NATIONAL BANK OF soum DAKOTA, AS
TRUSTEES. FOR THE BENEFIT OF THE
TRUSTOR'S THREE DAUGHTERS,
RHONDA N. FOWLER, MELANIE M. NELSON
AND MELINDA N. PFOHL

By .
RiCHARDW:TRUSTEE
2
. '
EXHIBITB
(FILED UNDER
SEAL)
EXHIBIT C
(FILED UNDER
SEAL)
EXHIBITD
(FILED UNDER
SEAL)
EXHIBITE
(FILED UNDER
SEAL)
In re: Chapter 11
et al./
Debtors. (Jointly Administered)
Ref. No. _____ _
ORDER SUSTAINING OBJECTION OF THE OFFICIAL
COMMITTEE OF UNSECURED CREDITORS TO
PROOF OF CLAIM NO. 1754 FILED BY OMEGA TRUST
Upon consideration of the Objection of the Official Committee of Unsecured Creditors to
Proof of Claim No. 1754 Filed By Omega Trust (the "Objection"),2 and the Court having
considered all responses, if any, filed in response to the Objection, and after considering all
evidence and testimony presented at any hearing on the Objection, and after due deliberation,
and good and sufficient cause appearing therefor, it is hereby ORDERED:
1. The OBJECTION is SUSTAINED in its entirety;
2. Proof of claim no. 1754 filed by Omega Trust (the "Omega Trust Claim") shall be
allowed as a General Unsecured Claim in Class 5 (as such terms are defined in the Plan) in the
amount of$12,000,000.00 only (the "Allowed Claim").
3. Any and all secured and administrative claims, and any other claims other than
and excepting the Allowed Claim identified in paragraph 2 above, asserted in the Omega Trust
Claim are hereby disallowed in their entirety.
(4225); MClD, Inc. (2015); Wilshire Beverage, Inc. (5887); and FlV Corp. (3448). The mailing address for the
2 Capitalized terms used buy not defmed herein shall have the meaning ascribed to such terms in the Objection.
{894.001-W0018074.}
4. This Court shall retain jurisdiction to implement and enforce the terms this Order.
Dated: _________ _
The Honorable Kevin Gross
Chief Judge, United States Bankruptcy Court
2
{894.001-WOOI8074.}

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

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